Wednesday, April 22, 2015

SCOTUS Decision in Wong (& June): Equitable Tolling & the Federal Tort Claims Act

Today the Supreme Court issued its decisions in United States v. Wong and United States v. June. As covered earlier, the cases address whether two time limits contained in the Federal Tort Claims Act are subject to equitable tolling. (Although Wong and June were not formally consolidated, the Court explains in footnote 1 that “we address them together because everyone agrees that the core arguments for and against equitable tolling apply equally to both of §2401(b)’s deadlines.”)

It’s a 5-4 split. Once again, the Justices examine—and disagree about—whether a statutory time limitation is “jurisdictional.” Justice Kagan writes the majority opinion, joined by Justices Kennedy, Ginsburg, Breyer and Sotomayor. Here’s the opening paragraph (emphasis added):

The Federal Tort Claims Act (FTCA or Act) provides that a tort claim against the United States “shall be forever barred” unless it is presented to the “appropriate Federal agency within two years after such claim accrues” and then brought to federal court “within six months” after the agency acts on the claim. 28 U. S. C. §2401(b). In each of the two cases we resolve here, the claimant missed one of those deadlines, but requested equitable tolling on the ground that she had a good reason for filing late. The Government responded that §2401(b)’s time limits are not subject to tolling because they are jurisdictional restrictions. Today, we reject the Government’s argument and conclude that courts may toll both of the FTCA’s limitations periods.

Justice Alito writes a dissenting opinion, joined by Chief Justice Roberts and Justices Scalia and Thomas. He argues that these limitations are jurisdictional and create an “absolute bar” that “is not subject to equitable tolling.”

 

 

April 22, 2015 in Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)

Wednesday, April 1, 2015

SCOTUS Decision in Armstrong v. Exceptional Child Center

Yesterday the Supreme Court decided Armstrong v. Exceptional Child Center, ruling by a 5-4 vote that Medicaid providers could not sue state officials for failing to comply with § 30(A) of the Medicaid Act (also known as the “equal access” provision). Justice Scalia writes the majority opinion, joined in full by Chief Justice Roberts and Justices Thomas and Alito. Justice Breyer joins part of Scalia’s opinion to provide the fifth vote, but also authors a separate concurring opinion. Justice Sotomayor writes the dissenting opinion, joined by Justices Kennedy, Ginsburg, and Kagan.

For excellent recaps of the decision, check out Steve Vladeck’s post at PrawfsBlawg and Will Baude’s post at SCOTUSblog.

 

 

April 1, 2015 in Federal Courts, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 31, 2015

Atlantic Marine, Forum-Selection Clauses & Erie

I started off this month talking about Erie, so here’s another Erie post to bring things full circle. Back in the fall, I was glad to participate in the Hastings Law Journal’s symposium on last Term’s SCOTUS decision in Atlantic Marine Construction Co. v. United States District CourtAtlantic Marine was a unanimous decision—authored by Justice Alito—on how and when to enforce forum-selection clauses in federal court. It’s a set of issues that only a civil procedure professor could love, and if you teach civil procedure Atlantic Marine may already be on your syllabus.

The symposium issue is now out. You can find links to all of the articles here, including contributions by Andrew Bradt, Kevin Clermont, Scott Dodson, Robin Effron, Linda Mullenix, Steve Sachs, and Brad Shannon. My piece is Atlantic Marine Through the Lens of Erie, and here’s the abstract:

The Supreme Court’s unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito’s opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago. 

This article for the Hastings Law Journal’s symposium on Atlantic Marine examines that decision through the lens of Erie, and explores the role that Erie and state law should play in the Atlantic Marine framework. Atlantic Marine may appear at first glance to mandate virtually unflinching enforcement of forum-selection clauses. But Justice Alito’s approach in Atlantic Marine applies only when the forum-selection clause is “contractually valid.” Properly understood, Erie requires federal courts to look to state law to decide this question — at least in diversity cases. To allow federal courts to disregard state law in applying Atlantic Marine would raise several troubling Erie concerns: geographic relocation contrary to what would occur in state court; changing the substantive law that would govern the ultimate merits of the litigation in state court; and overriding state contract law and contractual remedies via the sort of federal common law that Erie forbids.

My thanks once again to the students, organizers, and panelists, as well as to the DJ who was able to find some Rod Stewart tracks without any advance notice. I learned a lot and had a great time.

[Cross-posted at PrawfsBlawg]

 

March 31, 2015 in Adam Steinman, Conferences/Symposia, Federal Courts, Recent Decisions, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Thursday, March 26, 2015

Lens on Stays Pending Appeal

Jill Lens has posted on SSRN a draft of her article, Stays Pending Appeal: Why the Merits Should Not Matter, which will be published in the Florida State University Law Review. Here’s the abstract: 

In Nken v. Holder, the Supreme Court delineated the standards that should guide a court’s discretion in deciding whether to stay injunctive relief pending appeal. A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label, it is not surprising to see courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.

Stays play an important role in appellate judicial review, but have received little academic commentary. This Article is the first to specifically argue against the evaluation of the merits within the decision to stay injunctive relief pending appeal. An evaluation of the merits, and the current emphasis on the factor, is not supported historically, theoretically, or practically. Instead the Court should look to whether a stay is necessary — due to any potentially changing circumstances, harm to the parties, and the public interest, similar to the other three Nken factors. The Article is also the first to argue that courts must explain their decisions on stays. Otherwise, the decisions seem unjustified, inconsistent, and illegitimate.

 

 

 

 

March 26, 2015 in Federal Courts, Recent Scholarship, Supreme Court Cases | Permalink | Comments (0)

Tuesday, March 24, 2015

SCOTUS Decision on Agency Determinations and Issue Preclusion

Today the Supreme Court decided B&B Hardware, Inc. v. Hargis Industries, Inc., a case about the preclusive effect of determinations made by the Trademark Trial and Appeal Board (TTAB) when reviewing trademark registrations. Writing for a seven-Justice majority, Justice Alito concludes that “a court should give preclusive effect to TTAB decisions if the ordinary elements of issue preclusion are met.”

Going forward, parties in trademark litigation will likely continue to litigate whether “the ordinary elements of issue preclusion” are, in fact, met with respect to any given TTAB decision. As Justice Ginsburg emphasizes in her brief concurrence, the Court recognizes that “for a great many registration decisions issue preclusion obviously will not apply.” Ginsburg explains that “contested registrations are often decided upon a comparison of the marks in the abstract and apart from their marketplace usage,” and that, if so, “there will be no preclusion of the likelihood of confusion issue in a later infringement suit.”

What may be of broader interest is the Court’s discussion of “whether an agency decision can ever ground issue preclusion.” The answer: yes, it can. Quoting a number of earlier decisions (citations omitted), Justice Alito writes:

“[B]ecause the principle of issue preclusion was so well established at common law, in those situations in which Congress has authorized agencies to resolve disputes, courts may take it as given that Congress has legislated with the expectation that the principle of issue preclusion will apply except when a statutory purpose to the contrary is evident. This reflects the Court’s longstanding view that when an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”

The Court then addresses – and dismisses – potential constitutional concerns with agency preclusion. Although Justice Alito finds that Hargis did not present any direct constitutional challenge, he discusses the Seventh Amendment and Article III in the context of Hargis’s “statutory argument that we should jettison administrative preclusion in whole or in part to avoid potential constitutional concerns.” Alito writes that “the Seventh Amendment does not strip competent tribunals of the power to issue judgments with preclusive effect; that logic would not seem to turn on the nature of the competent tribunal.” And he rejects the argument that “it might violate Article III if an agency could make a decision with preclusive effect in a later proceeding before a federal court.”

Justice Thomas writes a dissenting opinion, joined by Justice Scalia, that is much more skeptical of agency preclusion. His opinion begins:

The Court today applies a presumption that when Congress enacts statutes authorizing administrative agencies to resolve disputes in an adjudicatory setting, it intends those agency decisions to have preclusive effect in Article III courts. That presumption was first announced in poorly supported dictum in a 1991 decision of this Court, and we have not applied it since. Whatever the validity of that presumption with respect to statutes enacted after its creation, there is no justification for applying it to the Lanham Act, passed in 1946.   

[Cross-posted at PrawfsBlawg

 

March 24, 2015 in Recent Decisions, Supreme Court Cases | Permalink | Comments (2)

Monday, March 23, 2015

Two Interesting SCOTUS Cert Grants Today

Today’s order list from the Supreme Court includes grants of certiorari in two cases.

DIRECTV v. Imburgia (No. 14-462) will ask the Court once more to address arbitration agreements and the Federal Arbitration Act. The question presented is:

Whether the California Court of Appeal erred by holding, in direct conflict with the Ninth Circuit, that a reference to state law in an arbitration agreement governed by the Federal Arbitration Act requires the application of state law preempted by the Federal Arbitration Act.

Montgomery v. Louisiana (14-280) involves the retroactivity of the Court’s 2012 decision in Miller v. Alabama, which held that the Eighth Amendment forbids sentencing schemes that mandate life-without-possibility-of-parole sentences for juvenile homicide offenders. The question presented in the cert. petition is:

Whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?

But the Court also asked the parties to address whether it even has jurisdiction:

Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller?

[Cross-posted at PrawfsBlawg

 

March 23, 2015 in Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, March 18, 2015

Has Conley v. Gibson really been overruled? (And did the Fourth Circuit just tee up the next big SCOTUS case on pleading?)

Over at PrawfsBlawg, Dave Hoffman has a post up on the empirical impact of Twombly and Iqbal. That issue has been hotly debated, but there’s no question that federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.

These issues were on display last Friday (the 13th, by the way) as a divided Fourth Circuit panel affirmed the dismissal of an employment discrimination claim in McCleary-Evans v. Maryland Department of Transportation (No. 13-2488). The majority opinion by Judge Niemeyer rejected the plaintiff’s reliance on Swierkiewicz, emphasizing that the Supreme Court in Swierkiewicz had “applied a pleading standard more relaxed than the plausible-claim standard required by Iqbal and Twombly.” In dissent, Judge Wynn argued that the majority had improperly “ignore[d] the factual underpinnings of the Swierkiewicz holding, looking solely to the Supreme Court’s 2009 decision in Iqbal to guide its decision,” and noted that lower federal courts “have no authority to overrule a Supreme Court decision no matter how out of touch with the Supreme Court’s current thinking the decision seems.”

Twombly and Iqbal are problematic decisions in many respects, and diagnosing their flaws is important. Even more important, though, is the question of how courts should be applying Twombly and Iqbal, especially in relation to pre-Twombly Supreme Court case law. Properly understood, Twombly and Iqbal can and should be read to preserve the notice-pleading approach that the Supreme Court repeatedly employed during the half-century before Twombly. I’ve laid out this argument here and here, and explained how the basic framework Iqbal articulated can be applied in a way that is consistent with notice pleading and pre-Twombly precedent. This understanding of Twombly and Iqbal is confirmed by more recent Supreme Court pleading decisions—especially the 2014 decision in Johnson v. City of Shelby—which cast doubt on the presumption that the Court’s pre-Twombly case law even is “out of touch with the Supreme Court’s current thinking.”

I may have more posts on pleading as March marches on, but for now I wanted to address the one—and only—instance where the Twombly and Iqbal opinions directly call into question any aspect of pre-Twombly case law. That, of course, was Twombly’s “retirement” of Conley’s statement that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”

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March 18, 2015 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases, Twombly/Iqbal, Weblogs | Permalink | Comments (2)

Wednesday, March 11, 2015

New developments in the Alabama same-sex marriage litigation

The litigation over Alabama’s ban on same-sex marriage has taken many twists and turns in these early months of 2015, but the main action has been in two arenas: the Alabama Supreme Court and U.S. District Judge Callie Granade’s courtroom in the Southern District of Alabama. Of course, everyone will be watching the U.S. Supreme Court as well, where Obergefell v. Hodges will be argued next month. And it was the Supreme Court’s February order refusing to stay Judge Granade’s initial injunction that began the latest round of activity. Here’s where things stand:

The Alabama Supreme Court said its piece last week, granting a writ of mandamus ordering all Alabama probate judges to stop granting marriage licenses. The merits of that ruling are certainly open to debate—both on the key constitutional issue and the standing/jurisdiction issue—but there are a few things to keep in mind going forward. First, the mandamus action was brought by two groups opposing same-sex marriage (acting as “relators” for the State of Alabama) against the Alabama probate judges. No individuals or couples who might wish to challenge Alabama’s same-sex marriage ban were parties to that proceeding, so as a matter of preclusion the ruling by the Alabama Supreme Court does not prevent them from seeking relief in federal court.

Second, the court ordered Alabama probate judges not to issue new same-sex marriage licenses (and it seems to have had that effect), but it ignored the relators request to order Alabama probate judges “not to recognize any marriage licenses issued to same sex couples.” In doing so, the court avoided one potential direct conflict with the federal judiciary, insofar as Judge Granade had previously ordered Mobile County probate judge Don Davis to issue marriage licenses to four same-sex couples in the Strawser case. Indeed, the Alabama Supreme Court’s order asked Davis to “advise” it “as to whether he is bound by any existing federal court order regarding the issuance of any marriage license other than the four marriage licenses he was ordered to issue in Strawser.” His deadline was last Thursday (3/5), but he’s asked for more time to respond. [Update: Today the Alabama Supreme Court posted on its website an order confirming that Judge Davis was also subject to its mandamus ruling, but only after determining for itself (whether correctly or not) that Judge Granade’s injunction did not extend beyond those four licenses.] 

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March 11, 2015 in Class Actions, Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Monday, March 2, 2015

The Dress, Justice Holmes & Erie

What’s the half-life for internet-breaking social media sensations these days? It seems to get shorter and shorter, so I figured I should address #TheDress sooner rather than later. Is it White & Gold, or Blue & Black? For all the snarkmemes, and celebrity tweets the dress has inspired, a crucial piece of historical context has been overlooked.

Ninety years ago, there was a kerfuffle in Bowling Green, Kentucky that bears striking similarities to the one that now threatens the marital harmony of Kim & Kanye. Back then, the dispute was between Black & White taxis and Brown & Yellow taxis. A federal lawsuit was filed that made its way all the way to the U.S. Supreme Court, where it prompted a strong dissent from Justice Holmes. Holmes attacked the majority for reading the 1842 decision in Swift v. Tyson to allow the federal court to disregard Kentucky law on the enforceability of a contract giving Brown & Yellow the exclusive ability to solicit customers at the Bowling Green train station.

To Holmes, the majority improperly accepted the “fallacy” that parties in federal court “are entitled to an independent judgment on matters of general law.” The Swift opinion itself—Holmes contended—was written by Justice Story “under the tacit domination” of this fallacy. Holmes explained: 

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March 2, 2015 in Current Affairs, Federal Courts, Supreme Court Cases | Permalink | Comments (0)

Wednesday, February 11, 2015

Walsh on Re on Narrowing Precedent

Now available on the Courts Law section of JOTWELL is an essay by Kevin Walsh entitled Expanding Our Understanding of Narrowing Precedent. Kevin reviews Richard Re’s recent essay, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861 (2014).

 

 

February 11, 2015 in Federal Courts, Recent Scholarship, Supreme Court Cases, Weblogs | Permalink | Comments (0)

Tuesday, February 10, 2015

Where Things Stand in the Alabama Same-Sex Marriage Litigation

Events continue to unfold in the wake of the U.S. Supreme Court’s order yesterday refusing to stay federal judge Callie V.S. Granade’s January ruling that Alabama’s same-sex marriage ban is unconstitutional. As of Tuesday, the number of Alabama counties where marriage licenses are being issued to same-sex couples has increased, but many are still refusing. See here and here for county-by-county information.

On Thursday, Judge Granade will hold a hearing in the Strawser v. Strange case to decide whether to issue an injunction against Mobile County Probate Judge Don Davis requiring him to begin issuing marriage licenses to same-sex couples. Today Judge Granade granted a motion to add Davis as a defendant (and several other couples as additional plaintiffs) in the Strawser case.

On another track, Davis has filed with the Alabama Supreme Court a request for clarification regarding Chief Justice Roy Moore’s order that Alabama probate judges must continue to enforce Alabama’s prohibition on same-sex marriage. No reports yet on when or how Moore will respond to this request (but he had lots to say in this interview on Bloomberg’s With All Due Respect).

You can find copies relevant rulings and documents here.

 

February 10, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Second Circuit Opinion on Class Certification & SCOTUS’s Comcast Decision

Today the U.S. Court of Appeals for the Second Circuit issued its decision in Roach v. T.L. Cannon Corp. The opinion begins:

“This appeal presents the question of whether the Supreme Court’s decision in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), overruled the law of this Circuit that class certification pursuant to Rule 23(b)(3) of the Federal Rules of Civil Procedure cannot be denied merely because damages have to be ascertained on an individual basis. The United States District Court for the Northern District of New York (McAvoy, J.) concluded that Comcast permits certification under Rule 23(b)(3) only when damages are measurable on a classwide basis, and denied Plaintiffs-Appellants’ motion for class certification.

“We hold that Comcast does not mandate that certification pursuant to Rule 23(b)(3) requires a finding that damages are capable of measurement on a classwide basis.”

And from later in the opinion:

“The Supreme Court did not foreclose the possibility of class certification under Rule 23(b)(3) in cases involving individualized damages calculations. Our reading of Comcast is consistent with the Supreme Court’s statement in Comcast that its decision turned upon 'the straightforward application of class-certification principles.' 133 S. Ct. at 1433. Our reading is also consistent with the interpretation of those Circuits that have had the opportunity to apply Comcast.”

 

H/T: Perry Cooper 

 

 

 

February 10, 2015 in Class Actions, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Alabama Same-Sex Marriage Litigation: Important Rulings & Documents

As we’ve been covering, there has been significant activity here in Alabama in the wake of the U.S. Supreme Court’s refusal to stay a federal judge’s January ruling that Alabama’s prohibition on same-sex marriage is unconstitutional. This post is simply to provide a repository for some of the important filings, decisions, and other documents. The links below will open the actual documents themselves, not simply links to other websites (which can sometimes succumb to “link rot”). I plan to update this page with new documents as the litigation proceeds.

 

 

 

 

 

February 10, 2015 in Current Affairs, Federal Courts, Federal Rules of Civil Procedure, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Monday, February 9, 2015

The Latest in the Alabama Same-Sex Marriage Litigation

Last month, Judge Callie V.S. Granade of the U.S. District Court for the Southern District of Alabama issued an injunction forbidding Alabama Attorney General Luther Strange from enforcing Alabama’s prohibition on same-sex marriage. She stayed the ruling until today in order to give the state time to appeal it. And this morning, the U.S. Supreme Court denied Strange’s application for a stay. Here is the Supreme Court’s order, including a dissent by Justice Thomas joined by Justice Scalia.

Alabama Chief Justice Roy Moore, however, has been in the news arguing that Alabama probate judges are not bound by Judge Granade’s order. On Tuesday, February 3, he issued a memorandum to Alabama’s probate judges. And on Sunday, February 8, he issued an administrative order that concludes:

“Effective immediately, no Probate Judge of the State of Alabama nor any agent or employee of any Alabama Probate Judge shall issue or recognize a marriage license that is inconsistent with Article 1, Section 36.03, of the Alabama Constitution or § 30-1-19, Ala. Code 1975.”

Alabama Attorney General Strange issued a statement today responding to the U.S. Supreme Court’s order refusing his stay application. Among other things, he states:

“To clarify my authority in this matter, the Alabama Attorney General’s Office does not issue marriage licenses, perform marriage ceremonies, or issue adoption certificates. The Chief Justice has explained in a public memorandum that probate judges do not report to me.”

And Alabama Governor Robert Bentley issued a statement today that he “will not take any action against Probate Judges, which would only serve to further complicate this issue” and will “allow the issue of same sex marriage to be worked out through the proper legal channels.”

As of this morning, same-sex marriages have begun in some counties in Alabama, but not in others. More litigation is almost certain, but here are some of the important rulings and documents so far:

 [Updated to include the statement by Governor Bentley.]

 

 

 

February 9, 2015 in Current Affairs, Federal Courts, In the News, Recent Decisions, State Courts, Supreme Court Cases | Permalink | Comments (0)

Wednesday, February 4, 2015

Missing Pro Se Litigant With SCOTUS-worthy Rule 4(m) Issue Resurfaces

We covered earlier the Supreme Court’s grant of certiorari in Chen v. Mayor and City Council of Baltimore (No. 13-10400), which promised to resolve a conflict in the circuits over extensions of time to serve process under Rule 4(m).  The petitioner was proceeding pro se, and on January 9 the Court dismissed the case with this order:

Petitioner has not filed a brief on the merits within 45 days of the order granting the writ of certiorari, as required by Rule 25.1. Petitioner has neither requested an extension of time nor responded to correspondence directed to the mailing address provided under Rule 34.1(f). Additional efforts to contact petitioner have been unsuccessful. The writ of certiorari is accordingly dismissed.

But the story doesn’t end there. Yesterday Mr. Chen—represented by Paul Clement—filed a petition for rehearing asking for his case to be reinstated. From today’s Wall Street Journal story:

Mr. Clement’s eight-page submission said Mr. Chen left his New York residence last fall to make what was intended to be a short business trip to California. But while there, Mr. Chen suffered a “slip-and-fall injury” that postponed his return for more than two months.

The court filing said Mr. Chen arrived back in New York on Jan. 22 and was “surprised and dismayed” to learn the Supreme Court had accepted, and subsequently dismissed, his case.

Stay tuned.

 

 

 

 

 

February 4, 2015 in Current Affairs, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, February 3, 2015

Dart Cherokee and Class-Certification Appeals under Rule 23(f)

We covered earlier the Supreme Court’s decision in Dart Cherokee Basin Operating Co. v. Owens, a case where cert. was granted to resolve what had to be contained in a notice of removal, only to have a 5-4 fight erupt over questions of Supreme Court jurisdiction and the proper standard of review.

Scott Gant and Christopher Hayes have now posted a piece entitled 'Dart' and Class Certification Order Jurisdiction, which argues the Dart Cherokee “also resolves uncertainty about whether the Supreme Court has jurisdiction to review a district court’s interlocutory order granting or denying class certification when the court of appeals has declined to review the order.”

 

February 3, 2015 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Saturday, January 24, 2015

SCOTUS Decision in Gelboim v. Bank of America: Appellate Jurisdiction & MDL Proceedings

Back at the end of last Term we covered the Supreme Court’s grant of certiorari in Gelboim v. Bank of America (No. 13-1174). This week the Court issued a unanimous opinion in Gelboim, authored by Justice Ginsburg. Here’s how she teed things up:

An unsuccessful litigant in a federal district court may take an appeal, as a matter of right, from a “final decisio[n] of the district cour[t].” 28 U.S.C. §1291. The question here presented: Is the right to appeal secured by §1291 affected when a case is consolidated for pretrial proceedings in multidistrict litigation (or MDL) authorized by 28 U.S.C. §1407?

The Court’s answer: No. Plaintiffs whose action was consolidated for pretrial MDL proceedings could still appeal the dismissal of their action, even though other cases in the MDL remained pending. It was not necessary for such plaintiffs to obtain authorization to appeal via Federal Rule of Civil Procedure 54(b).

In footnote 4, though, the Court reserved judgment on whether it would reach the same conclusion when cases were “combined in an all-purpose consolidation,” as opposed to an MDL consolidation for pretrial purposes only. (Not as glamorous as footnote 4 of Carolene Products, but worth keeping an eye on.)

For more, Howard Wasserman has an analysis of the opinion over at SCOTUSblog.

 

January 24, 2015 in Federal Courts, Federal Rules of Civil Procedure, MDLs, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Tuesday, January 20, 2015

SCOTUS Decision in Teva Pharmaceuticals v. Sandoz: FRCP 52, Clear Error, and Patent Claim Construction

Today, the Supreme Court issued a 7-2 opinion in Teva Pharmaceuticals v. Sandoz, which addresses the role of Rule 52(a)’s “clear error” standard of review in the context of patent claim construction. Justice Breyer writes for the majority and Justice Thomas, joined by Justice Alito, writes a dissenting opinion. In addition to the link above, here is the .pdf of the opinion that was released today: Download Teva v. Sandoz

And here is the short answer, from the majority opinion:

Federal Rule of Civil Procedure 52(a)(6) states that a court of appeals “must not . . . set aside” a district court’s “[f]indings of fact” unless they are “clearly erroneous.” In our view, this rule and the standard it sets forth must apply when a court of appeals reviews a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim.

Both opinions, however, confront the notoriously thorny distinction between fact and law, and there is an interesting discussion of whether facts relevant to claim construction are analogous to facts relevant to quintessentially “legal” endeavors like statutory interpretation. As for how this all unfolds in the patent context, just read parts II.D and III of the court’s opinion (which features one of my new favorite words: kilodalton). 

The dissenting opinion begins: 

Because Rule 52(a)(6) provides for clear error review only of “findings of fact” and “does not apply to conclusions of law,” Pullman-Standard v. Swint, 456 U. S. 273, 287 (1982), the question here is whether claim construction involves findings of fact. Because it does not, Rule 52(a)(6) does not apply, and the Court of Appeals properly applied a de novo standard of review. (footnote omitted).

Justice Thomas’s dissent also raises an interesting wrinkle about the extent to which the majority’s decision hinges on “stipulations” by the parties that may narrow its impact. As he writes in a footnote:

The majority argues that we are bound by petitioners’ phrasing of the question presented and by respondents’ concession at oral argument that claim construction “will sometimes require subsidiary factfinding.” Ante, at 10–11. But the parties’ stipulations that claim construction involves subsidiary factual determinations, with which I do not quarrel, do not settle the question whether those determinations are “findings of fact” within the meaning of Rule 52(a)(6). And to the extent that the majority premises its holding on what it sees as stipulations that these determinations are “findings of fact” for purposes of Rule 52(a)(6), then its holding applies only to the present dispute, and other parties remain free to contest this premise in the future.

 

January 20, 2015 in Federal Rules of Civil Procedure, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Wednesday, January 7, 2015

Investigation Finds Specialists Turning Supreme Court Into "Echo Chamber"

A three-part Reuters investigation entitled "The Echo Chamber" (here, here, and here), which is discussed in this week's The New Yorker magazine, begins: "A cadre of well-connected attorneys has honed the art of getting the Supreme Court to take up cases - and business is capitalizing on their expertise." 

Hat tip: Tom Goldstein, SCOTUSBlog

January 7, 2015 in In the News, Supreme Court Cases | Permalink | Comments (0)

Monday, December 15, 2014

SCOTUS Decision in Dart Cherokee: What Must a Notice of Removal Contain? (And More!)

Today the Supreme Court issued a 5-4 decision in Dart Cherokee Basin Operating Co. v. Owens. It’s an interesting breakdown. Justice Ginsburg writes the majority opinion, joined by Roberts, Breyer, Alito, and Sotomayor. The dissenters are Scalia, Kennedy, Thomas, and Kagan. 

The question presented in Dart Cherokee involves what a party must include in a notice of removal. The answer, from Justice Ginsburg’s majority opinion:

To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite amount plausibly, or must the defendant incorporate into the notice of removal evidence supporting the allegation? That is the single question argued here and below by the parties and the issue on which we granted review. The answer, we hold, is supplied by the removal statute itself. A statement “short and plain” need not contain evidentiary submissions.

And later:

In sum, as specified in §1446(a), a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Evidence establishing the amount is required by §1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant’s allegation.

The dissenters in Dart Cherokee don’t challenge the majority on this. The cause of the disagreement, rather, is an issue that received considerable attention during the oral argument—one that was first flagged by Public Citizen in an amicus brief questioning the proper standard of review and the extent to which the Supreme Court could review a Court of Appeals’ decision to deny permission to appeal under the Class Action Fairness Act (CAFA). Review of the Tenth Circuit’s decision was complicated by the fact that it issued only a short order that failed to explain why it denied permission to appeal the district court’s remand order.

Justice Ginsburg finds that these concerns did not prevent Supreme Court review in this case, noting that “[t]he case was ‘in’ the Court of Appeals because of Dart’s leave-to-appeal application, and we have jurisdiction to review what the Court of Appeals did with that application. See 28 U. S. C. §1254; Hohn v. United States, 524 U. S. 236, 248 (1998),” and that “[t]here are many signals that the Tenth Circuit relied on the legally erroneous premise that the District Court’s decision was correct” in denying permission to appeal. In remanding the case, however, Justice Ginsburg notes that “[o]ur disposition does not preclude the Tenth Circuit from asserting and explaining on remand that a permissible ground underlies its decision to decline Dart’s appeal.”

Justice Scalia writes the dissenting opinion, arguing that the Court should have dismissed the writ as improvidently granted.

“Because we are reviewing the Tenth Circuit’s judgment, the only question before us is whether the Tenth Circuit abused its discretion in denying Dart permission to appeal the District Court’s remand order. Once we found out that the issue presented differed from the issue we granted certiorari to review, the responsible course would have been to confess error and to dismiss the case as improvidently granted.”

The most amusing part of the Dart Cherokee decision comes in Justice Scalia’s dissent, where he responds to Justice Ginsburg’s observation that a 2013 case, Standard Fire v. Knowles, came to the Court in a similar posture, yet Justice Scalia joined that decision without raising these concerns. Justice Scalia writes:

As for my own culpability in overlooking the issue, I must accept that and will take it with me to the grave. But its irrelevance to my vote in the present case has been well expressed by Justice Jackson, in a passage quoted by the author of today’s opinion: “I see no reason why I should be consciously wrong today because I was uncon­sciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639–640 (1948) (dissenting opinion), quoted in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___, n. 11 (2014) (slip op., at 12, n. 11) (GINSBURG J., dissenting).

Finally, it’s worth noting that Justice Thomas does not join the final sentence of Justice Scalia’s dissenting opinion, where Justice Scalia writes that he would vote “to affirm” the Tenth Circuit if the writ were not dismissed as improvidently granted. This is because, as Justice Thomas explains in a separate dissenting opinion, he believes that the Supreme Court lacks jurisdiction even to review the Tenth Circuit’s decision under 28 U.S.C. § 1254. 

 

 

 

December 15, 2014 in Federal Courts, Recent Decisions, Subject Matter Jurisdiction, Supreme Court Cases | Permalink | Comments (0)